An underlying ethical theme for all lawyers is that our conduct shouldn’t bring the legal profession into disrepute. For reasons unknown (well, not really unknown, but rarely spoken), this concern disappears when someone decides it’s necessary to get someone at all costs. Corey Hipscher found that out the hard way.
Via the Fort Lauderdale Sun-Sentinel, Hipscher was accused of fondling young girls.
Hipscher was accused in July 2009 of fondling a 10-year-old Boca Raton girl while helping her onto a boat at Quiet Waters Park. After those accusations became public, two more girls accused Hipscher of doing the same thing to them. The girls, visiting South Florida from the Dominican Republic, were ages 7 and 8.
Hipscher had taken the girls on boat rides, pulling them behind him on a flotation device, the girls and other witnesses testified during trials in August and November 2011. Hipscher’s lawyers argued that the girls misinterpreted innocent contact.
Two trials. Two acquittals. For those who may not appreciate it, obtaining an acquittal against accusations of this nature are notoriously difficult, as the natural inclination to believe and protect children tends to overcome all other evidence. To prevail twice in such cases is, well, quite extraordinary.
Case closed? Not by a long shot.
[Broward Circuit Judge Martin] Bidwill was unimpressed, finding that Hipscher committed a new crime while on probation for an old one. And while he legally could not impose the life sentence Hipscher would have received had he been convicted of child molestion, Bidwill gave the defendant the stiffest sentence he could.
For violating his probation, Hipscher was sentenced to 15 years imprisonment, based solely on the same evidence for which had been acquitted. Neat trick, right? Hipscher was on probation for a 2002 conviction, having nothing to do with children.
In the 2002 case, Hipscher was accused of sexual battery on his then-girlfriend. In court Thursday, he told Bidwill the whole case was a lover’s quarrel, and he accused his girlfriend of filing charges against him so she could qualify as a victim for a program that would pay for her relocation to Illinois.
Nonetheless, this conviction put him on the sex offender registry, which included a condition that he stay away from children. Worse still, he had two prior “technical” violations, neither involving the commission of a new crime, for which he had served under a year each. But this time was different.
This time, prosecutors turned to the probation violation after losing both criminal cases.
“We pursued all avenues to get prison time for this defendant,” said Broward prosecutor Maryanne Braun. “We absolutely believe those girls who said he molested them, and the court believed them as well.”
The only people who didn’t buy guilt were the people sitting on the jury. And who cares what they think where the prosecution and court face a defendant who they’ve decided needs to go down. If not in the first trial, or even the second trial, there’s always the backdoor of probation, where proof beyond a reasonable doubt isn’t required, leaving the judge to do as he pleases without any “technicalities” to stay his heavy hand.
Cases like Hipscher’s make complete sense to the lawyer mind, to the extent that we understand and appreciate the differences in burden of proof and the inability of the prosecution to obtain a conviction, not once but twice, has no technical bearing on the judge’s determination that he violated probation based upon the reduced burden. But cases like Hipscher’s offend us, because we similarly realize that guilty or innocent, he never had a chance. The only question was how he would be burned, not whether. His fate was sealed.
To the public, however, the technical aspects of burden of proof mean nothing. It’s of no importance whether Hipscher’s sentence is tied to a probation violation or having brown hair. He was acquitted of the crime. Then he was acquitted again. That, to any reasonable person, is where the legal system has to let go. The prosecution tried, and no one faults them for trying assuming they had sufficient evidence to go to trial, and lost. Thanks for playing. Better luck next time.
When the acquitted defendant gets 15 years for the crime, we lose faith. We lose hope. We see a system that cannot be trusted, a judge and prosecutor who have spit at the jury, telling them they couldn’t care less that he was acquitted. Bidwill maxed out the defendant because he could, because he, despite the jury verdict, decided he was a bad dude who deserved to be sentenced to 15 years.
There was no way Corey Hipscher was going to walk, even though he had no history of sexually abusing children and, in this case, overcame the unspoken presumption of guilt. It couldn’t stink worse.
No doubt the prosecution was sure of Hipscher’s guilt, but then, so what? There is almost always a cavalier certainty by prosecutors that they somehow know deeper truths than ordinary people. But there is a judge to temper their zeal, and to stand between the failed prosecution and the retribution they demand for a crime unproven. More importantly, there is a judge whose job it is to prevent the system from falling into clutches of the prosecution and being reduced to no more than a tool to convict.
When trials and acquittals mean nothing, the legal system is turned into a farce. Respect for the system disintegrates. Whether Corey Hipscher was such a bad dude as to give rise to the need for such extreme punishment is hardly clear, but what is absolutely clear is that no one is so bad that putting him in prison is worth bringing the legal system into abject disrepute.
But then, why worry about it when you have a man who needs prison, no matter what the harm to the integrity of the legal system. The prosecution and judge demanded that Corey Hipscher go to prison, and that’s what happened. They can worry about the system some other day.
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This is what happens when prosecutors (and judges) lose their way. It appears that prosecutors intentionally gave the finger to the juries. Sounds a little like jury nullification to me.
In Canada, we go one step farther and codify the fantasy of “public perception” of the legal profession and administration of justice; the Criminal Code is riddled with references to the public perception of the administration of justice, and the constitutional exclusion of evidence turns on whether “the justice system would be brought into disrepute”. In theory, it should cut most ways, but in practice, seems to serve quite often as shorthand / a shortcut for a way for the court to find its way out of a painted-in corner.
The argument that a well-educated and knowledgeable population, having regard to the system as a whole, would rightfully have its faith in the system shaken if bad evidence is used to commit someone never seems as persuasive as the implicit “what will people think if this bad guy goes free”
I don’t think this is what the jury nulllification advocates had in mind.
I could be wrong, but I believe he’s trying to swim in unusual curling shoes.
hurtful 😀
The better question is why a condition that he not be near children was either necessary or desirable in this case. Whether or not it was mandatory, I do not know, but it strikes me as being similar in nature to granting overbroad restraining orders which prevent the accused from doing things which are both unrelated to the substance of the alleged offense and severely restricting on the liberty of the accused. Prosecutors and courts seem to feel that the rights of offenders who commit such offenses are such that any possible restriction that can be imposed should be. This is fundamentally contrary to the notion of rehabilitation and to the principle of proportionality.
The laws should be changed to make consideration of relevant circumstances limited to facts both proven in court and that have not been previously adjudicated upon. If prosecutors want to assert aggravating factors in sentencing, they should be required to assert and prove them in court. At present, prosecutors can introduce facts during sentencing which the accused has not had the opportunity to challenge pursuant to the confrontation clause or that the accused is even aware that the prosecution is asserting prior to sentencing.
This is a travesty of justice.
The institutions of social structure have created a Utopic blind herd mentality. The herd has been led to believe justice is defined by equality and fairness. Encourage critical thinking. Oh, wait that would upset our collective happiness.